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October 31, 2013

"Can the system curb prosecutorial abuses?"

The title of this post is the headline of this article in The Arizona Republic capping its series of article on the problems of prosecutorial misconduct.  Here is how this piece starts:

For three days, The Arizona Republic has examined prosecutor conduct and misconduct, citing cases in which prosecutors stepped over the line without suffering consequences to themselves or the convictions they win. The question remains: What can be done about it? Options already are in place.

When a prosecutor steps over the line, it’s up to the defense attorney to call it to the court’s attention, and it’s up to the judge to decide whether an offense has been committed and whether it affects the defendant’s right to a fair trial. Yet, neither likes to do so.

Prosecutors are arguably the most powerful people in the courtroom: They file the charges and offer the plea agreements. They determine whether to seek the death penalty, and, given mandatory sentencing, predetermine the consequence of a guilty verdict.

Defense attorneys worry that if they cross a prosecutor, future clients could be treated more harshly the next time they face that prosecutor in court. Judges worry about prosecutors who use court rules to bypass those judges who rein them in. Both know that prosecutors are rarely sanctioned by the court or investigated by the State Bar of Arizona for ethical misconduct.

So overly aggressive prosecutors continue to have their way in the courtroom – as long as they win cases, experts say. “It comes from this ‘end-justifies-the-means mentality,’” said Jon Sands, the federal public defender for Arizona. “We’ll do anything we can to bring someone to justice.”

Here are links to the other article in the series:

October 31, 2013 at 08:39 AM | Permalink

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Comments

YES³

ORDER evil predatory prosecutors to resign from the practice of law , else:
{1} Night & Fog on family members and {2} Medically Induced Anoxia on prosecutor.

Evil predatory prosecutors misbehave due to an uncommonly low RISK:REWARD ratio .

☺ As a kindness , thoroughly explain the consequences of {1} and {2} to all prosecutors as they take their oath of office .

The defense bar and trial judges are out of the sanction loop.

Posted by: Just Plain Jim (Just Another Guy) | Oct 31, 2013 9:10:52 AM

Seeing as the sytem had not managed in decades to do so and the USSC pretty much gives them a license to lie, cheat, steal and fake evidence and witness.

I have to say NOT A FUCKING CHANCE!

Posted by: rodsmith | Oct 31, 2013 10:49:15 AM

1) There are many duties of the prosecutor to the defendant. Here are some enumerated in the statutes enacting Model Rule 3.8. Also click on the Comments at the bottom for further elucidation.

http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_3_8_special_responsibilities_of_a_prosecutor.html

Other duties are in the Rules of Criminal Procedure and the Rules of Evidence.

I suggest the defendant read all those duties and report every single violation to the Disciplinary Counsel of the state, one at a time. Each generates a separate investigation, introducing uncertainty into the life of the prosecutor. Always name his immediate supervisor and the political head of the proscutor office, to generate more investigations into their failures to supervise.

The prosecutor is usually an at will employee, who can be fired for good reason, an improper reason, or no reason at all. They are very insecure, being litigators as well.

These charges will be dismissed unless filed by a judge. However, they are worth effort in distracting the prosecutor with his own risk.

Also don't forget to file a complaint against your defense attorney for failing to report the misconduct in violation of in re Himmel, and its codification in 8.3. Report the judge for this cover up as well.

Why will they always be dismissed? Only four Rules are ever enforced, commingling funds, drinking on the job, disrespecting a judge during a trial (OK afterwards, even calling for the killing of a judge is OK, but after a trial, when it does not matter). Sex with everyone including vulnerable criminal clients is OK.

2) Sue the Supreme Court of the state. There is a massive violation of the separation of powers when it comes to lawyer regulation. A Supreme Court writes the Rules of Conduct (a legislative act). It employs a Disciplinary Counsel as prosecutor (an executive function), then judges on his prosecutions (of their own employee). Also no human beings can properly reuglate themselves. I suggest a lawyer licensing board comprising mostly doctors, in the executive branch, and a medical licensing board of mostly lawyers.

All defendants need two lawyers, a defense lawyer, and legal malpractice lawyer to terrorize the defense lawyer into doing his duty. The defense lawyer owes his job to the prosecutor, not to the client. He likely worked in the office, and they likely get together after a case to toast the stupidity of the public.

3) That being said, it is or should be a defense lawyer standard of due care to demand all prosecutor computers in discovery. We are searching for an improper motive, using all "ism" cards, whatever the defendant is, the prosecutor is biased. Then refer the tons of child porn on government computers to the FBI, for investigation.

Someone will say, the prosecutor is a human being who does not deserve the above treatment. I suggest the above tactics only for innocent defendant who will be railroaded into prison.

Posted by: Supremacy Claus | Oct 31, 2013 7:01:30 PM

SC:

There are never innocent defendents, only erroneous acqitals.

There are never lying prosecutors or prosecutor pandering judges (ex-prosecutors), only procedural obfuscating defense lawyers.

Posted by: albeed | Oct 31, 2013 9:31:37 PM

Albeed: You may be surprised that I support tort litigation, and actually oppose all tort reform including limits on exemplary damages as violating Excessive Fines and Seizures.

The numerous Supreme Court decisions prohibiting any tort liability of prosecutors is bad for the specialty. It deprives them of an opportunity to learn and grow. I believe they can be reversed by a statute. If that does not work, then pass an Amendment.

Beyond the benefits of torts, their tort immunity fully justifies violence against them in formal logic.

As a disclosure and warning, tort liability deters and shrinks the entire enterprise and not just the defendant. Both prosecutions and government size in general may shrink after the defunding that may result from torts.

Posted by: Supremacy Claus | Oct 31, 2013 10:13:45 PM

albeed --

I must tip my hat to you on how influential your message has become. Today, at LAX, a fellow with the same attitude toward government workers that you have finally got some revenge on these parasites. Congratulations!

P.S. Not that we're out of the woods. Some undoubtedly corrupt prosecutor is very likely to file trumped up charges and threaten a draconian sentence in order to extort a false confession and a coerced guilty plea.

As you have so often told us, I just don't know how we can tolerate such thugs.

Posted by: Bill Otis | Nov 1, 2013 6:42:54 PM

Bill:

I would like to thank you for how far you consider the range of my influence by my comments on this blog. However, I am afraid that I don't think that is the case. For one, I never advocated nor would advocate the use of violence except very aggressively in true self-defense. I do believe that there are way too many unnecessary parasites who have become wealthy but should have earned minimum wage working for today's US governments.

No, I am afraid that the powers that be brought this on themselves.

PS: As of this statement, I have not read up on the case yet, but intend to do so. If the suspect mentions my comments by name, I will reconsider, but I have my doubts. I think you would have had more of an effect, based on the frequency of comments and not understanding that passage from Proverbs:

"the mouth of the fool, works its own ruin".

Bill, I have acknowledged that I at least admire you for your consistency. I don't often agree with your message. I consider most of them, too simple. I am also sure that if I look not too hard, I will be able to find some abuse by LE or prosecutors this week also, but it will be swept under the rug.

Take Care!

Posted by: albeed | Nov 1, 2013 10:03:01 PM

albeed --

"I am afraid that the powers that be brought this on themselves."

What is the evidence for that?

"If the suspect mentions my comments by name, I will reconsider, but I have my doubts."

Why would he have to mention you by name? Ideas count; names, not so much.

"I am also sure that if I look not too hard, I will be able to find some abuse by LE or prosecutors this week also, but it will be swept under the rug."

Do you really think this is the occasion to talk about abuse by government workers? Some guy from TSA -- an organization of which I am quite skeptical -- just got shot to death for no known reason other than hate.

Scrutiny of prosecutors and cops is fine, indeed laudable. But rote and sneering contempt, with next to no attempt at balance, is going way overboard, and you should give it a rest.

Posted by: Bill Otis | Nov 1, 2013 10:58:26 PM

The worst thing that we have going on in courts right now is the use of slide rulers by prosecutors. If you do not know what this is about then please Google it. It is too rude to post here.

Posted by: Liberty1st | Nov 2, 2013 3:46:55 AM

"Why would he have to mention you by name? Ideas count; names, not so much."

Well, I have reviewed all the stories regarding the LAX shooting that I can and I can say that I have not seen my screen name referenced yet so I doubt that I had much of an influence on this unbalanced individual. He came to his own conclusions, whatever they were.

The ideas are probably from what Benjamin Franklin stated long ago, "he who gives up liberty, to obtain a little security, deserves neither liberty nor security." I think it was Ben Franklin's fault, not mine. I won't even go with what Thomas Jefferson said about periodically renewing freedom and liberty. I may be accused of causing 9/11.

That a TSA agent was shot is a tragedy. However, it was a tragedy equivalent to a number of ordinary people who are killed by law enforcement with no real investigation and the old saw about officer safety and perception excusing everything. Many in this profession are as unbalanced as this individual, but the public and media are often not told the entire story.

I see that the shooter had a gun in a "Gun Free Zone". How are those laws working out for you?

No, I just don't believe that my government is being honest with me or the American People. Once you lose trust, you have to earn it back, not just try to squeeze harder and continue deceiving. I, at least, do not try to make excuses for these people, both liberal and conservative.

Posted by: albeed | Nov 2, 2013 9:32:07 AM

albeed --

"He came to his own conclusions, whatever they were."

Why pretend that you don't know what they were? If as you say you have read "all" the stories about this (which you would have no way of knowing), you'd be aware that his motive was the very same contempt for the government that you have relentlessly promoted, in the past and, for that matter, now.

I never said that you personally motivated him. I said your ideas did. From what has been reported of his note, my assessment is correct.

"The ideas are probably from what Benjamin Franklin stated long ago, "he who gives up liberty, to obtain a little security, deserves neither liberty nor security." I think it was Ben Franklin's fault, not mine."

As Ronald Reagan said, there you go again. You're so far gone on hating the government that you believe Benjamin Franklin in effect advocated murdering some uniformed government employee who just happened to be there when the killer decided he'd "had enough and wasn't going to take it anymore."

The TSA is an obnoxious, or worse, agency. But killing its employees is not justified by anything Benjamin Franklin or the other Framers said.

"That a TSA agent was shot is a tragedy."

It was more a crime -- murder, that is -- than a tragedy. And your fig leaf here is transparent in any event. What you actually think is that the TSA guy in some sense had it coming, isn't that it? You basically spill the beans in your very next sentence, which moves right along to the pre-existing agenda that government employees are vermin.

"I see that the shooter had a gun in a 'Gun Free Zone'. How are those laws working out for you?"

Ask Obama and Eric Holder, who support such laws. I oppose them. You didn't know that?

Posted by: Bill Otis | Nov 2, 2013 10:54:29 AM

I have made a point similar to Bill's here before. There are people who simply hate law enforcement and think nothing of smearing the criminal justice system. Although I despise their tactics, I believe that their right to do so is sacrosanct. The problem is that when the justice system is unfairly maligned, the public's faith diminishes and that has predictable consequences for public safety. (Once again, I am not advocating, nor would I ever advocate, muzzling critics of the criminal justice system, even if their criticisms are unfair.) On the other hand, when the criminal justice system screws up badly, the criticism can and should be absolutely pitiless. There is zero moral authority for asking citizens to hold back when there are major screwups, even if the public safety consequences are not great. The fault for the decrease in the public's faith falls on the bad actor, not the criticizer.

Let's take an example--the lack of a prosecution of David Gregory, a man who willfully violated DC's gun laws. Am I wrong to think that now all DC prosecutions of DC gun laws are suspect? Am I wrong to think that people who are prosecuted for some of the technical violations of DC gun laws have a serious beef with the government? They do.

And what do we tell some guy who was erroneously locked up by way of willful misconduct of the prosecutor or the police? Let's take an example, a few years ago in College Park, Maryland, a police officer decided to take out his frustrations on some kid who wasn't doing anything. Of course, not content to beat the kid, they also had to arrest him and charge him with a crime. Unfortunately for the thug cops, there was a tape of this incident. Had there not be a tape, this kid would have been subjected to life-ruining punishment (good luck getting a job , kid) for absolutely nothing. How many other kids have been screwed like that? How many times have prosecutors thought that the case against someone for battery of a cop stunk, but prosecuted it anyway because they didn't want to hurt relationships with the cops?

These are tough tough questions. And they go elsewhere--it is patently obvious that the IRS played politics with the tax law (whether disclosing donor lists) or subjecting groups to different scrutiny based on politics. Does anyone on the right trust the IRS?

Posted by: federalist | Nov 2, 2013 11:00:21 AM

Bill:

You and I are really not so different. Federalist, I thought, did a good job of describing my position.

You have to remember that I was part of an organization that was shaken down by the DOJ for several hundreds of millions of dollars. They anecdotally tried to piece together disparate E-mails to present their case and our lawyers felt it would be better to settle the case in spite OF WHAT REALLY HAPPENED. I was there and I know what happended, but why fight City Hall.

I will not make an apology for our "leaders", or as they really are, vote whores. This downward spiral began and continues with the spreading of public education, er I mean, indoctrination.

I am all for the good cop, good detective and good prosecutor. By "good", I mean they are simply as honest as a human can be. They do not embelish their positions with junk science and are straight shooters. If that were the case, defense lawyers wouldn't stand a chance with their "obfuscating" tactics.

If I may ask you a question? You said:

"Ask Obama and Eric Holder, who support such laws. I oppose them. You didn't know that?"

Would you or would you not use the "Gun Free Zone" as a sentencing enhancement, even if it had little or nothing to do with the original crime?

Posted by: albeed | Nov 2, 2013 11:27:15 AM

federalist --

"The fault for the decrease in the public's faith falls on the bad actor, not the criticizer."

Bingo. Which is why, for example, the Democrats are so amazingly unprincipled in claiming that criticism of Obamacare's numerous lies and disasters is unpatriotic if not racist.

As to law enforcement: I have probably been more outspoken in criticizing Eric Holder's politicized criminal law priorities than anyone in mainstream legal academia. But criticism is one thing; unhinged and generalized hatred is something else. It was the latter that lay behind yesterday's murder of a TSA worker; it is also the latter that albeed has been spreading for as long as he's been commenting here.

There are thousands of people in law enforcement. Some are heroic, like the 9-11 first responders. Most are ordinary people with both virtues and failings, just like you and me. Some in LE, as in any large profession, are thugs and crooks. When we find that kind, they should be, not merely criticized, but prosecuted.

When they are, the prosecuting will be done by the very people albeed continues to despise -- public employees. He has not yet said who else he thinks should bring corrupt and lawless LE people to account.

Posted by: Bill Otis | Nov 2, 2013 11:40:31 AM

albeed --

Could you reformulate your question to be more specific? As it stands, the best I can do for an answer is to tell you that I would charge a 924(c) offense if the facts showed one occurred. My former Office did this with Project Exile in Richmond -- resulting in cutting the murder rate by 50% in that city the first year. I have absolutely no regrets. Indeed, I'm proud of it, since, apart from reducing murder, I had the chance to work more closely with my former colleague in EDVA, now FBI Director, Jim Comey.

The problem I have with you is that you paint with way, way too broad a brush. In this thread alone, you walk right up to line of justifying the murder of the TSA worker on the grounds that the government is virtually universally corrupt, dishonest and thuggish.

Even if your premise were correct, which it is not, the conclusion is appalling. I don't care how angry you or I or anyone else is with TSA. It is grossly illegal and morally abominable to just walk up to a TSA person and shoot him to death. Period.

Posted by: Bill Otis | Nov 2, 2013 1:18:26 PM

"Even if your premise were correct, which it is not, the conclusion is appalling. I don't care how angry you or I or anyone else is with TSA. It is grossly illegal and morally abominable to just walk up to a TSA person and shoot him to death. Period."

Bill, I agree with your statement above 100%. I know you were angry with me about previous posts and that was apparent in your response to my response to SC's last comment which started this thread. I have to admit that in this comment I was probably taking a jab at your other posts and I regret that.

Remember in a previous post where an ordinary, but habitual minor-league thief, was sentenced to twenty years for possession of shotgun shells (working or non-working) in a bureau that he "stored" for his neighbor. For his part in a state crime which resulted in the warrant (thievery), he would have received about 2 -4 years confinement. Instead, his possession of said shells resulted in a federal offense and (I believe) a 20 year sentence.

What would you charge him for possession of said bureau in a "Gun Free Zone" vs intentional discharge with intent to harm someone in a "Gun Free Zone" whether:

- he was a previously convicted felon, or

- had no prior record.

This gives four possible real-life scenarios.

You have to forgive me if I am not coherent in the exact legal definitions. One case is obvious and I would agree with throwing the book at someone who discharges with intent. The lack of an intentional discharge and actual firearm are (to me) often treated equally harshly as attempted murder.

Posted by: albeed | Nov 2, 2013 2:03:21 PM

Why Not! if they are going to act like nazi stormtroopers. Why not expect to be treated like one. Sorry i don't consider thier action legal under the united states constitution. Just as i consider the so-called 100 mile inland range of the so-called border patrol just as illegal. Under that bit of criminal stupdity 70% of the nation is in a 4th amendment free zone!

Cop's and govt agents have no problem killing our citizens even if they have done Nothing wrong and were not even the right target!

At lest this guy came to kill Govt Agents "the TSA" and that's what he shot! Govt agent's constutinally operating outside the constitution!

Sorry but the United States KILLED for all time the excuse "i was just following orders" do a google search for the last couple who were returned to germany for trial in the last few years. 60 years later! who had a hell of a lot better excuse to shut up and solder! Since you can still quit a job in this country and not worry the Gestaph will SHOOT YOU FOR IT!

I am sorry it happened. But the govt needs to wake up and smell the disaster they are causing!

Posted by: rodsmith | Nov 2, 2013 10:22:00 PM

Bill: I certainly oppose the random shooting of a TSA agent. I also blame the Supreme Court for this tragedy. According to them, now, the shooter qualifies for involuntary treatment of his paranoid schizophrenia, but still only after a trial requiring the jobs of three lawyers.

However, I would be interested in your argument against the following formal logic conclusion. The contrapositive of a true assertion is always true, for your information. Prof. Berman studied philosophy, and can confirm this law.

(If A, then B, as in all bats are mammals; if an animal is a bat, it must be a mammal.)

Tort liability is a substitute for violence.

If an animal is not a mammal, it cannot be a bat. If not B, then not A.

Violence is a remedy for damage (If not B), if someone has tort immunity (then not A is true).

I understand your policy argument that we want government to do jobs for us, that we cannot or do not want to do ourselves, and that we grant them unique privileges to enable them to do so.

This is not a policy argument, but a formal logic argument.

Posted by: Supremacy Claus | Nov 3, 2013 5:22:00 PM

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